Iowa Supreme Court Strips Live Nude Dancing Theaters of Regulation by Local Ordinances

On July 27, 2012, the Iowa Supreme Court issued Mall Real Estate, LLC v. City of Hamburg, which held Iowa’s obscenity statute preempted the enforcement of a local ordinance designed to regulate a strip club. The strip club, Shotgun Geniez, qualified as a “theater” for live performances under Iowa Code section 725.5, which exempts theaters from the statewide ban on nudity. Shotgun Geniez’s live performances consisted of clothed, nude, and semi-nude dancing of an erotic variety, including lap dancing and pole dancing. The City of Hamburg passed an ordinance with the stated purpose of regulating sexually oriented business “to promote the health, safety, morals, and general welfare” of Hamburg, and “prevent the deleterious secondary effects of sexually oriented businesses.” The ordinance would have required theaters like Shotgun Geniez to obtain sexually oriented business licenses. The ordinance strictly regulated the manner in which licensed facilities could operated their business. Among other restrictions, it prohibited the sale or consumption of alcohol on the premises, prohibited tipping the performers, and imposed specific rules on the lay-out of the stage and seating area. The ordinance provided that any violation of the ordinance would result in a revocation of the license.

The operator of Shotgun Geniez challenged the enforceability of the ordinance, arguing that it was preempted by Iowa’s obscenity law. The Iowa District Court sided with the City of Hamburg and held the ordinance was enforceable. The Iowa Supreme Court reversed and held that Iowa law preempted the ordinance. Iowa code section 725.11 provides that “the sole and only regulation of obscene materials shall be under the provisions” of Iowa Coe chapter 725. The Iowa Supreme Court interpreted the term “obscene materials” to include nude and semi-nude dancing. The Iowa Supreme Court reasoned that because Iowa law expressly preempted the regulation of the same activity Hamburg’s ordinance sought to regulate—nude and semi-nude dancing—Hamburg’s ordinance was void. The Iowa Supreme Court remanded the case to the District Court with instructions to enter an order that prohibited Hamburg from enforcing the ordinance against Shotgun Geniez. The opinion did not touch on zoning ordinances applicable to strip clubs, which are subject to a different analysis.

Justices Cady and Waterman dissented. Justice Cady disagreed that nude erotic dances constituted “obscene material” under Iowa Code section 725.11 because all the other enumerated “materials” under that statute were physical or tangible materials and unlike a live dance. In his dissent, Justice Waterman urged the application of the federal First Amendment analysis and stated that expressive conduct like live nude dancing was “a far cry from the heart of the First Amendment protection for political speech and debate.” Justice Mansfield took no part in the decision.